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Pepe-Frazier v. State

Court of Appeals of Georgia

March 18, 2015


Page 655

Cert. applied for.

Pimping, etc. Fulton Superior Court. Before Judge Lee.

The Pate Law Firm, Page A. Pate, Jess B. Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Sheila E. Gallow, Assistant District Attorneys, for appellee.

DILLARD, Judge. Doyle, P. J., and Miller, J., concur.


Page 656

Dillard, Judge.

Following a trial by jury, David Pepe-Frazier was convicted of trafficking of persons for sexual servitude, pimping, aggravated child molestation, enticing a child for indecent purposes, and contributing to the delinquency of a minor. On appeal from these convictions, Pepe-Frazier argues that (1) the trial court erred by admitting prior consistent statements of the victim, (2) the trial court erred by qualifying two expert witnesses, and (3) he received ineffective assistance in various regards. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's guilty verdict,[1] the record reflects that on April 18, 2009, the then 14-year-old victim encountered Pepe-Frazier when he offered her a ride. The victim was initially hesitant to accept Pepe-Frazier's offer, but upon noticing that his vehicle was occupied with another male and two young females, she agreed to do so. Pepe-Frazier then drove the group to a house, where the victim spoke at length with the other male, who she came to know as " Swatt" (and who was later identified as Harvey White), before engaging in sexual intercourse with him.

During this time, Pepe-Frazier left the house with the two other females, but upon their return, the victim noticed that one of the females carried a substantial amount of cash and wore " very short shorts." Pepe-Frazier then informed the victim that he knew she had engaged in sexual intercourse with White and advised her that she " might as well get paid for it" (rather than having sex with men for free). The victim remained at the house for several days and eventually agreed to work as a prostitute for Pepe-Frazier.

Thereafter, over the course of several weeks, either Pepe-Frazier or the home's female owner would drive the victim and other females, including Pepe-Frazier's girlfriend (who assisted him in training new prostitutes), to areas where she and the other prostitutes would seek out multiple men with whom to engage in sexual intercourse in exchange for money. And while Pepe-Frazier initially allowed the victim to keep half of what she earned, within days he began taking all of the money she made as a prostitute.

On one occasion, while the victim lived in the house with Pepe-Frazier and the other prostitutes, Pepe-Frazier made the victim perform oral sex on him while he was simultaneously engaged in sexual intercourse with his girlfriend. And although the victim soon [331 Ga.App. 264] decided that she no longer wished to be a prostitute, she was afraid of Pepe-Frazier after he slapped her when she tried to remove his hand from her mouth and, in another incident, choked and slapped her after a man called her cell phone. Additionally, approximately one week after the victim's arrival, she witnessed Pepe-Frazier pull a gun on another prostitute who attempted to leave the house. The victim also witnessed Pepe-Frazier

Page 657

punch the woman who owned the house in the stomach and saw him engage in several physical altercations with his girlfriend.

Nevertheless, despite her fear of Pepe-Frazier, the victim eventually made contact with her sister and informed her that she was scared and wished to come home. And shortly thereafter, as the victim was being driven to an area where she regularly prostituted, she text-messaged her family with various landmarks as she passed them, and she then waited in the restroom of a fast-food restaurant while her family notified law enforcement of her location. The vehicle she was driven in was pulled over a short distance down the road based on the victim's description, and she later positively identified Pepe-Frazier in a photographic lineup.

At Pepe-Frazier's trial, in addition to the victim's testimony and that of another former prostitute who worked alongside her, the State also presented testimony from White that, inter alia, he was with Pepe-Frazier when the victim was picked up; Pepe-Frazier convinced the victim to work as a prostitute; Pepe-Frazier's prostitute girlfriend assisted in training new recruits; he saw the victim summoned to Pepe-Frazier's room while Pepe-Frazier was engaged in sexual intercourse with his girlfriend; and he saw Pepe-Frazier slap the victim " real hard" when she used her cell phone. Pepe-Frazier was convicted of all the offenses enumerated supra, and this appeal follows.

At the outset, we note that on appeal from a criminal conviction, the defendant is " no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict." [2] With this guiding principle in mind, we turn now to Pepe-Frazier's enumerations of error.

[331 Ga.App. 265] 1. First, Pepe-Frazier contends that the trial court erred by admitting a prior consistent statement by the victim that was pure hearsay and bolstered her credibility. Specifically, Pepe-Frazier argues that the trial court erred by overruling an objection to testimony by a law-enforcement officer that the victim said Pepe-Frazier slapped her after she removed his hand from her mouth. We agree that the trial court's admission of this testimony was erroneous; however, this error was harmless.

First, we note that a witness's prior consistent statement is admissible when " (1) the veracity of a witness's trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination." [3] And a witness's veracity is placed in issue so as to permit the introduction of a prior consistent statement if " affirmative charges of recent fabrication, improper influence, or ...

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